The People of the State of New York, Respondent, v. Harry Rivera, Appellant

The People of the State of New York, Respondent, v Harry Rivera, Appellant. [MAJORITY] Appeal by defendant from a judgment of the Supreme Court, Richmond County (Sangiorgio, J.), rendered December 29, 1983, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The trial court did not err in allowing Charles Rodriguez to identify the defendant at the trial, nor did it err in permitting Rodriguez to testify at the trial regarding his prior lineup identification of the defendant, since Rodriguez’s identification of the defendant as that of the perpetrator was not the product of any improperly suggestive police procedure. Although Rodriguez was shown two arrays containing two different photographs of the defendant in an effort to obtain an identification, Rodriguez was unable to make a positive identification from the photographs, and the defendant’s appearance in each of the photographs was markedly different. Furthermore, the defendant’s appearance at the time of the lineup varied greatly from his appearance in both of the photographs, so there was no risk of improper suggestion giving rise to an irrevocable mistaken identification (see, People v Chamberlain, 96 AD2d 959). We have examined the defendant’s remaining contention and find it to be unpreserved for review, and in any event, without merit. Thompson, J. P., Bracken, Brown and Eiber, JJ., concur.